Delhi District Court
State vs Praveen Sharma@ Fatta on 22 July, 2024
IN THE COURT OF MS. VANDANA JAIN:
ADDL. SESSIONS JUDGE-03/SPECIAL JUDGE
(COMPANIES ACT), DWARKA COURTS, NEW DELHI.
MORE THAN 19 YEARS OLD
CNR No. : DLSW01-012543-2019
SC No. : 821/2019
State Vs. : Praveen Sharma @ Fatta
FIR No. : 93/2005
U/s. : 392/34 IPC
P.S. : Dabri
1. CNR No. of the Case : DLSW01-012543-2019
2. Date of commission of offence : 12/13.02.2005
3. Date of institution of the case : 24.02.2007
4. Date of committal to Sessions
Court : 16.02.2016
5. Name of the complainant : Sh. Kapil Yadav
6. Name of accused, parentage &
address : Parveen Sharma @
Fatta,
S/o Sh. Deen Dayal,
Present Address :
R/o A-19-C, Ishwar
Colony, Arjun Park,
Najafgarh, New Delhi.
7. Offences complained of
in the chargesheet : 392/34 IPC &
174A IPC
8. Offences under which charges
were framed : 392/34, 397 & 174A
IPC
9. Plea of the accused : Pleaded not guilty
SC no.821/2019 Page No. 1 of 16
State vs. Praveen Sharma @ Fatta
FIR No.93/2005, PS Dabri
10. Date on which order was reserved: 19.07.2024
11. Final order : Acquitted
12. Date of final order : 22.07.2024
JUDGMENT
Facts
1. Brief facts of the prosecution case, as succinctly stated, are that on 13.02.2005 at 2.20 am, DD No.6A was received at PS Dabri wherein it was recorded that mobile, chain and ring of Kapil Yadav were snatched at Indira Park, Mangal Bazar Wali Gali. The said DD was marked to SI Jalish Ahmed. Statement of complainant Kapil Yadav was recorded wherein he stated that on the intervening night of 12/13.02.2005 at 12.40 am he was coming after attending a marriage from Gurugram to his house at Indira Park. When he alighted from rickshaw at Kailash Puri Chowk and reached near Punia Tent House, two boys came from behind. One of those boys snatched his chain and other one snatched his mobile, his purse containing Rs.400/- and gold ring which he was wearing in his right hand finger. On the basis of the said complaint, FIR under Section 392/34 IPC was registered at PS Dabri. The investigation was carried out and during investigation, both the accused persons namely Rahul Singh (Since Proclaimed Offender) and Praveen Sharma were arrested in FIR No.148/2005 under Section 399/402 IPC & 25/27 Arms Act, PS Dabri wherein they disclosed their involvement in the present case and they were arrested in the present case. One ring was recovered from accused Rahul Singh (Since Proclaimed SC no.821/2019 Page No. 2 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri Offender) and one watch & one chain were recovered from accused Praveen Sharma. Both the accused persons were asked to join the TIP proceedings but both of them refused to join the same. After completion of investigation, chargesheet was filed against both the accused persons for the offence under Section 392/34 IPC.
2. During the trial, accused Rahul was declared Proclaimed Offender vide order dated 08.05.20213 passed by learned MM. A charge under Section 392/34 IPC was framed by learned MM on 19.12.2014 against accused Praveen Sharma @ Fatta. Matter was thereafter listed for prosecution evidence.
3. During prosecution evidence, PW-1 Sh. Kapil Yadav was partly examined-in-chief and during examination of PW-1, learned MM opined that the present case fall under Section 397 IPC, which is triable by Court of Sessions and hence, on 04.02.2016, the case was committed to the Court of Sessions.
4. On 22.02.2016, charge under Section 392/34 and 397 IPC was framed against accused Praveen Sharma @ Fatta to which he pleaded not guilty and claimed trial. Matter was thereafter listed for prosecution evidence. However, on 11.04.2016 accused Praveen Sharma was absent and coercive action was taken against him and he was eventually declared Proclaimed Offender on 21.02.2017.
5. Complainant/PW-1 Sh. Kapil Yadav was examined under SC no.821/2019 Page No. 3 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri Section 299 CrPC and therefore, the file was consigned to Record Room with the direction to take up again as and when accused persons are arrested.
6. Thereafter, accused Praveen Sharma @ Fatta was arrested in a Kalandra under Section 41.1(c) CrPC and was produced before learned MM on 26.07.2019. A supplementary chargesheet was filed under Section 174A IPC against accused Praveen Sharma @ Fatta on 21.10.2019 and the said chargesheet was committed to the Court of Sessions which was attached with the main case file of case FIR No.93/2005 PS Dabri. Additional Charge for the offence under Section 174A IPC was framed against accused Praveen Sharma on 18.12.2019 to which he pleaded not guilty and claimed trial.
7. Thereafter, matter was listed for prosecution evidence. Summons to complainant/PW-1 Sh. Kapil Yadav were sent, however, same were received back with his death certificate and therefore, his name was deleted from the list of witnesses.
8. Prosecution has examined SI (Retd.) Dilbagh Singh as PW-2, ASI (Retd.) Daya Nand as PW-3, SI Rakesh Kumar as PW-4 and Inspector (Retd.) Inder Singh as PW-5. Since accused Praveen Sharma admitted TIP Proceedings dated 15.03.2005 of accused Praveen Sharma Ex.A-1, FIR No.93/2005 PS Dabri Ex.A-2 and DD No.6A dated 13.02.2005 PS Dabri Ex.A-3, the witnesses pertaining to aforesaid documents were dropped in view of the statement of the accused persons recorded under SC no.821/2019 Page No. 4 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri Section 294 CrPC.
Prosecution evidence
9. PW-1 Sh.Kapil Yadav is the complainant whose testimony was recorded under Section 299 CrPC wherein he deposed that during the relevant period of incident in question, he was residing at H.No.RZ-26P/21, Gali No.34, Indra Park, Palam Colony, New Delhi. He was permanent resident of VPO Mandola, PS Khod, District Rewari, Haryana and was working as Engineer in Wipro Infotech at Gurgaon. On the intervening night of 12/13.02.2005, he was coming back to his residence of Indra Park, after attending a marriage party at Gurgaon and when he alighted from cycle rickshaw at Kailashpuri chowk and was coming to his house on foot. At about 12:40 a.m. when he reached near Punia tent house, on Mangal bazaar road, he was apprehended by two young persons, out of them one was having fire arm in his hand. In the meanwhile, their two other associates also came there and one of the assailant had put pistol/fire arm on his chest and other three associates caught hold of him. Thereafter, one of the assailant had forcibly snatched his mobile phone make Samsung having SIM card of Reliance company. Thereafter, second of their associate had also forcibly snatched his wearing gold chain and the third associate snatched his wearing gold ring and purse containing Rs.450/-. Thereafter, all the accused persons ran away from the spot. Two-three residents were found present at some distance from the spot and he made a call to number 100 by using the mobile phone of one of the residents. Beside PCR staff, two SC no.821/2019 Page No. 5 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri other police officials from PS Dabri came at the spot and one of them recorded his statement Ex.PW1/1 wherein the concerned IO had not mentioned the fact of putting a fire arm on his chest by one of the assailant during the incident, which had actually happened with him. He deposed that none of the assailant of the incident in question was present in the court, however, he could identify them, if shown to him. He further deposed that during investigation of the present case, place of incident was inspected by the IO who had prepared the site plan at his instance. On 15.03.2005, he was called by the IO at Tihar jail for identification of the culprits of the offence in question, but the accused persons had refused to participate in TIP proceedings.
10. PW-2 SI (Retd.) Dilbagh Singh deposed that on 02.03.2005, he was posted as ASI at PS Dabri. On that day, he joined the investigation of case FIR No.148/2005 with SI Ghansi Ram. Accused Rahul and Praveen @ Fatta were already arrested in FIR No.148/2005. Accused Praveen @ Fatta and Rahul made disclosure statement in FIR No.148/2005 and prove the same as Ex.PW2/A and Ex.PW2/B respectively bearing his signature at point-A. One gold ring was recovered from the possession of accused Rahul which he was wearing in his finger and same was taken into police possession vide memo Ex.PW2/C after sealing the same with the seal of 'GR'. He further deposed that one HMT Kohinoor Watch was recovered from the possession of accused Praveen @ Fatta which he was wearing on his hand and same was taken into possession vide memo Ex.PW2/D after sealing the same with the seal of 'GR'. Accused Praveen Sharma SC no.821/2019 Page No. 6 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri @ Fatta also pointed out the place of incident and pointing out memo Ex.PW2/E was prepared in this regard. He has correctly identified accused Praveen @ Fatta. He was duly cross examined by learned counsel for accused.
11. PW-3 ASI (Retd.) Dayanand deposed that on 13.02.2005, he was posted at PS Dabri. On that day, he alongwith SI Jalish Ahmed was on emergency duty from 08:00 pm to 08:00 am. At around 02:20 am, on receipt of DD No.6A, he alongwith IO/SI Jalish Ahmed reached at the spot i.e. Mangal Bazar, Indra Park, Delhi, where complainant Kapil Yadav and PCR met them . IO recorded the statement of complainant, prepared Rukka and handed over the same to him for registration of FIR. Thereafter, he went to PS and got registered the FIR and came back to the spot and handed over copy of FIR along with Rukka to the IO. They searched for accused persons but no accused could be traced out on that day. In the day time, complainant was called in PS and show the dozzier but he could not point out any person from dozzier.
12. PW-3 ASI (Retd.) Dayanand was again examined in this case on 21.12.2023 at the request of Addl. PP for the State who stated that ASI (Retd.) Dayanand had participated in the investigation of the present case alongwith IO and can identify the signatures of IO/SI Jalish Ahmed (since deceased) and IO/SI Ghansi Ram (since deceased), who conducted the investigation in the present case.
SC no.821/2019 Page No. 7 of 16State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri
13. PW-3 ASI (Retd.) Dayanand, while appearing again in the witness box on 21.12.2023, deposed that he was posted at PS Dabri as ASI in the year 2003 till 2005 and he had joined the investigation of the present case along with IO/SI Jalish Ahmed. He further deposed that he could identify signatures and handwriting of SI Jalish Ahmed and SI Ghansi Ram as he had seen them writing and signing in due course of his duties. He identified the signature of SI Jalish Ahmed at points-A on site plan Ex.PW3/A and arrest memo of accused Praveen Sharma @ Fatta Ex.PW3/B. He also identified the signature of IO/SI Jalish Ahmed on statement of complainant Ex.PW1/1 at point-B, on rukka Ex.PW3/C at point-C and stated that the rukka was prepared by SI Jalish Ahmed in his handwriting. He also identified the signature of SI Ghansi Ram on seizure memos Ex.PW2/C & Ex.PW2/D, pointing out memo Ex.PW2/E and disclosure statement of accused Praveen Sharma @ Fatta Ex.PW2/A at points-B. He was duly cross examined by learned counsel for the accused.
14. PW-4 SI Rakesh Kumar deposed that on 25.07.2019, he was posted at Crime Branch, Chankyapuri as ASI. On that day, he along with his staff i.e. SI Surender Rana, ASI Sanjeev Kumar and ASI Sukhinder Raj Kumar went in search of a Proclaimed Offender at Udyog Vihar, Mangolpuri, New Delhi. There they met secret informer who informed that one accused who is PO from Dwarka Court is present in front of Factory No.H-31. Thereafter, he alongwith staff went there and the secret informer pointed out towards a person standing in front of said factory.
SC no.821/2019 Page No. 8 of 16State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri They went to accused who revealed his name as Praveen Sharma @ Fatta S/o Sh. Deen Dayal. On checking the record, he came to know that accused has been declared Proclaimed Offender in case FIR No.93/2005 PS Dabri, under Section 397/394/34 IPC from the Court of Ld. ASJ-03 vide order dated 21.02.2017. Personal search of accused was carried out and nothing was recovered from his personal search. Accused was arrested vide arrest memo Ex.PW4/A and his personal search was conducted vide memo Ex.PW4/B. He prepared Kalandra under Section 41.1(c) CrPC vide DD No.5 Ex.PW4/C and produced the accused Praveen Sharma @ Fatta before the concerned Court. He was duly cross examined by learned counsel for accused.
15. PW-5 Insp. (Retd.) Inder Singh deposed that he was posted as SHO PS Dabri from 06.03.2006 till 02.10.2007. The investigation of the present case was completed by the previous IOs (who have expired) and he had signed the said charge-sheet being the then SHO of PS Dabri. Before signing the charge- sheet, he had perused the entire file and found that the investigation of the present case was complete and the chargesheet was also prepared by the previous IOs. While perusing the file, hes found that in the month of February 2005, accused Praveen Sharma and his two associates namely Rahul and Rajesh had robbed complainant Kapil Yadav of his gold chain, gold ring and Rs. 450/- at knife and gunpoint in the night at Mangal Bazar, Dabri. Thereafter, the accused persons alongwith robbed articles fled from the spot. The investigation was conducted by IO/SI Jalish Ahmed who prepared the site-plan SC no.821/2019 Page No. 9 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri Ex.PW3/A at the instance of complainant Kapil Yadav. Accused Praveen Sharma @ Fatta and Rahul were arrested in another case FIR No. 148/2005 of PS Dabri and investigation of the said case was conducted by IO/SI Ghansi Ram. IO/SI Ghansi Ram got recovered the gold chain from accused Rahul in case FIR No.148/2005 of PS Dabri. IO/SI Jalis Ahmed then arrested accused Praveen Sharma @ Fatta and Rahul vide arrest memos Ex.PW3/B and Ex.PW5/1. He was duly cross examined by ld. counsel for accused.
16. PW-6 HC Krishna Nand Singh has deposed that on 10.10.2016 after receiving the process under Section 82 Cr.PC issued by Court, he went to the address of the accused i.e. RZ-F- 270, Gali No. 3, Mahavir Enclave, New Delhi where the tenant of the accused met and informed that accused Praveen is not residing there. Thereafter, he had read over the contents of process u/s 82 CrPC to the locality and also got the proclamation of the process done by beat of drums in the locality. He also got pasted one copy of process u/s 82 CrPC on the main gate of the said house and also on the notice board of the Court. He has proved the report regarding execution of the process u/s 82 CrPC Ex.C-1. He was duly cross examined by ld. counsel for the accused.
17. PW-7 SI Harikesh has deposed that on 15.10.2012, the process under Section 82 Cr.PC against accused Praveen Sharma @ Fatta was marked to him and he went to the house of accused Praveen Sharma @ Fatta at RZ-F-270, Gali No. 3, Mahavir SC no.821/2019 Page No. 10 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri Enclave Part I, New Delhi where he met the landlord namely Raj Singh, who told him that accused Praveen Sharma @ Fatta was not residing at the said address. He recorded his statement and thereafter read over the contents of the process under Section 82 Cr.PC in loud noise in nearby locality. He also got proclamation done by beats of drums in the locality. He also pasted one copy of process under Section 82 Cr.PC at the conspicuous part of the said house. The said proclamation was also got pasted in Navbharat Times newspaper. He has proved his report as Ex.PW7/A and statement of the landlord namely Raj Singh as Ex.PW7/B. He has also proved the copy of the said newspaper is Ex.PW7/C. He was duly cross examined by ld. counsel for the accused.
18. Thereafter, prosecution evidence was closed.
Statement under Section 313 CrPC & Defence Evidence
19. Statement of accused under Section 313 CPC was recorded wherein he stated that he has been falsely implicated in this case by police.
20. Accused did not lead any evidence in his defence.
Arguments on behalf of parties
21. I have heard the arguments on behalf of Ld. Addl. PP for the State and ld. Counsel for accused.
22. Ld. Addl. PP for the State had argued that PW-1 Sh. Kapil SC no.821/2019 Page No. 11 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri Yadav had deposed under Section 299 CrPC against the accused herein and had supported the prosecution version in its entirety. Ld. Addl. PP for accused had argued that absence of the accused was the lapse on his own part and the accused cannot get advantage of the same. Ld. Addl. PP for the State had argued that the testimony of the witness PW-1 Sh. Kapil Yadav recorded in the absence of the accused be read against the accused herein. He had further argued that recovery of gold ring from the possession of other co-accused Rahul (since Proclaimed Offender) and one HMT Wrist Watch from the possession of accused Praveen Shrama @ Fatta has been duly proved. In respect of Section 174A IPC, ld. Addl. PP for the State had argued that Process Server SI Harikesh who had executed process under Section 82 CrPC against the accused has been examined as PW-7 and he has proved his report regarding execution of process under Section 82 CrPC beyond reasonable doubt and therefore, the accused be convicted under Section 392/34, 397 and 174A IPC.
23. On the other hand, ld. counsel for the accused had argued that no part of testimony of star witness of the prosecution i.e. PW-1 Sh. Kapil Yadav has been recorded in the presence of the accused and his identity has not been established during the trial of the present case and therefore, from no stretch of imagination, the accused can be convicted for the said offence. In respect of the offence under Section 174A IPC, ld. counsel for the accused had argued that process under Section 82 CrPC has not been initiated in accordance with law. Therefore, the accused be SC no.821/2019 Page No. 12 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri acquitted of the charges framed against him Analyisis, Reasoning & Findings
24. It is a cardinal principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredients of the offence beyond reasonable doubt. Reliance in this regard is placed on Nasir Sikander Shaikh vs. State of Maharashtra (SC) 2005 Crl.L.J. 2621 and Jarnail Singh vs. State of Punjab (SC) 1996 (1) RCR 465.
25. Perusal of the record shows that earlier the charge was framed under Section 392/34 IPC and the trial was going on before learned Magistrate. On 04.02.2016 PW-1 Sh. Kapil Yadav was examined-in-chief. After recording the part examination-in- chief, learned Magistrate opined that matter fell under Section 397 IPC which is exclusively triable by the Court of Session and hence the case was committed to the Court of Sessions. Before the Sessions Court, charge under Section 392/34 & 397 IPC was framed against the accused on 22.02.2016. Matter was listed for P.E., however, PW-1 Sh. Kapil Yadav was not traceable. Fresh summons were issued to IO. In the meantime, accused Praveen Sharma @ Fatta stopped appearing and coercive process was issued against him and finally he was declared proclaimed offender on 21.02.2027.
26. Statement of PW-1 was again recorded under Section 299 CrPC wherein he had duly supported the prosecution case by SC no.821/2019 Page No. 13 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri explaining entire incident , however, since accused persons were not present and were already Proclaimed Offender, the identification of the accused herein and the other co-accused Rahul Singh (Since Proclaimed Offender), could not be established. It is pertinent to mention here at this stage that till the stage of recording of evidence of PW-1 Kapil Yadav under Section 299 CrPC on 19.04.2017, accused had never come before the victim/complainant at any point of time. Though the TIP proceedings were conducted, however, accused refused to join the TIP proceedings during the investigation stage. On the basis of that, the chargesheet was filed. At the first instance, when the accused was present and the testimony of PW-1 Sh. Kapil Yadav was being recorded, the full examination-in-chief was not conducted and after recording a portion of it, it was sent to the Court of Sessions for trial without establishing the identity of the accused. Again when PW-1 was called, accused was already declared Proclaimed Offender. At no point of time, accused had been identified as one of the person who had snatched any of the belonging of the complainant. It is further worthwhile to notice here that accused was not apprehended from the spot in the present case. In fact, he was arrested in another case FIR No.148/2005 under Section 399/402 IPC and 25/27 Arms Act, PS Dabri wherein he made disclosure regarding his involvement in the present FIR. When accused was apprehended in a Kalandara under Section 41.1(c) CrPC subsequent to his declaration as Proclaimed Offender, however, at that time PW-1 had already expired and therefore, the identification of the accused could not be done in the docket. Without his docket identification, accused SC no.821/2019 Page No. 14 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri can not be said to be the one who has committed the offence in the present case. Therefore, the accused Praveen Sharma @ Fatta stands acquitted of the charges under Section 392/34 IPC and 397 IPC.
27. Insofar as charge under Section 174A IPC is concerned, it is settled law that even if the accused has been acquitted for the substantive offence, he can still be held guilty for the offence under Section 174A IPC. Perusal of record shows that proclamation had been done at RZ-F-270, Gali no.3, Mahavir Enclave, New Delhi. However, in the arrest memo Ex.PW3/5 which is dated 03.03.2005, two addresses of the accused had been given. The present address is the same on which the proclamation has been done i.e. RZ-F-270, Gali no.3, Mahavir Enclave, New Delhi and the permanent address of the accused i.e. H.No.57, Ateli Mandi, Distt. Mohinder Garh, Haryana has also been mentioned. It is again stated at the risk of repetition that proclamation was done only at one of the address i.e. RZ-F- 270, Gali no.3, Mahavir Enclave, New Delhi whereas necessary efforts should have been made to trace the accused at all the available and known addresses of the accused which does not appear to have been done in the present case.
28. Furthermore, the bailbonds furnished by the accused on 27.04.2006 are also found on record wherein the address of the accused is mentioned as RZ-491, Street No.17, Sadh Nagar, Palam, New Delhi, meaning thereby, by April, 2006 he has changed his address. The accused was declared proclaimed SC no.821/2019 Page No. 15 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri offender on 21.02.2017. The coercive process was taken against him after 22.02.2016, meaning thereby, all the three addresses of the accused were available on record when the NBWs were issued against him and process under Section 82 CrPC was initiated. Since the process under Section 82 CrPC has not been executed properly, therefore, the accused Praveen Sharma @ Fatta cannot be convicted under Section 174A IPC.
29. In view of the aforesaid discussion, the prosecution has miserably failed to prove its case against the accused. Hence, accused Praveen Sharma @ Fatta stands acquitted of the charges framed under Section 392/34, 397 & 174A IPC in the present FIR No.93/2005, PS Dabri.
Announced in open court Digitally signed by
VANDANA VANDANA JAIN
on 22.07.2024 JAIN Date: 2024.07.22
14:35:53 +0530
(Vandana Jain)
ASJ-03 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi
Note: This judgment contains sixteen (16) pages and having my signature on each page. Digitally signed by VANDANA VANDANA JAIN JAIN Date: 2024.07.22 14:35:59 +0530 (Vandana Jain) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi SC no.821/2019 Page No. 16 of 16 State vs. Praveen Sharma @ Fatta FIR No.93/2005, PS Dabri